January 20, 2000

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The law governing the case of Elián González, the 6-year-old Cuban boy found clinging to an inner tube after his mother drowned on the way here from Cuba, could not be more clear. When unaccompanied minors come to the United States, immigration regulations provide that their parents have the right to speak for them because the minors cannot legally speak for themselves. Elián’s father, still in Cuba, has made it clear that he wants Elián to come home, and thus he has withdrawn Elián’s application for admission and asylum. The INS has satisfied itself that the father is speaking of his own free will. That should be the end of the matter. If a father doesn’t want his child to enter or remain in the United States, who are we to insist that he should?

The Cuban expatriate community, however, and a distant relative of Elián’s, his great-uncle, don’t believe the law should govern here. They invoke what might be called the “Cuba exception.” Their argument: No one in Cuba can speak freely, so you can’t trust what anyone in Cuba says. Elián’s father can’t possibly be expressing his free will, because anyone faced with the choice would immediately abandon their children if it meant they could grow up in the United States rather than Cuba.

This argument could not be more frivolous as a legal matter. Yet the case has demanded extensive attention at the highest levels of our national government, become a staple of national media coverage, inspired a bad-faith Congressional subpoena and a frivolous state-court injunction, prompted talk about special legislation to impose US citizenship on the boy against his father’s will and threatened to spark riots in Miami.

The Administration’s response has been to insist on law over politics. President Clinton has said the matter should be handled by “the legal process.” Attorney General Janet Reno has practically invited lawyers for Elián’s great-uncle to go to federal court to challenge the INS’s decision and has delayed sending the boy back to Cuba to allow them to do so.

The Administration is right to maintain that the matter should be governed by law and to invite judicial review. But it’s not surprising that the response has fallen on deaf ears among the Cuban expatriates. That community is used to getting exceptional treatment. All other aliens must establish a basis for asylum or close family ties to earn the right to live here permanently; Cubans, under the Cuban Refugee Adjustment Act, need only set foot on our soil, and they are automatically eligible to become permanent residents and to get expedited citizenship. And the longstanding Cuba trade embargo is itself a testament not to any rational foreign policy but to the raw political strength of the Cuban expatriate community and the lingering force of anti-Communism. That community long held our foreign policy hostage; why not hold a 6-year-old boy hostage, too?

More broadly, the Administration’s invocation of legal process and judicial review here is itself exceptional, reflecting not a commitment to principle but a tactical judgment that a court might provide political cover in a presidential election year. In hundreds of immigration cases across the country where the government seeks to separate rather than unite families, the Administration has argued that its actions should be immune from judicial review. When the INS’s actions are subjected to judicial review, as in its treatment of Haitians caught on the high seas or refugees seeking political asylum at the border, the INS inevitably argues that immigration decisions are inherently political and that courts should defer to the political branches’ “plenary power” over immigration. Most immigration cases, unlike Elián González’s, never make the newspapers, and most aliens have no politically powerful community to press their cause. For most aliens, the judiciary is their only potential source of protection, yet the Administration generally argues for unreviewable political discretion. It is only when aliens have political power behind them that the Administration invites judicial review, and then only as a matter of political cover. But this gets it exactly backward. Courts are most needed to protect those who cannot protect themselves through the political process. The courts should be open to all immigrants.

David ColeTwitterDavid Cole, national legal director of the ACLU, is legal affairs correspondent for The Nation and a professor at Georgetown University Law Center. He is the author, most recently, of Engines of Liberty: How Citizen Movements Succeed (April 2016).